Hira Lal Mehta v. For the State

SCC 175; Sri Narayan Saha and another vs. State of Tripura reported in (2004) 7 SCC 775; Sunil Vs. State of Harayana reported in (2010) 1 SCC 742; Jai Krishna Mandal and another Vs. State of Jharkhand reported in (2010) 14 SCC 534 and Krishan Kumar Malik Vs. State of Haryana reported in (2011) 7 SCC 130. It is submitted that prosecution has not been able to substantiate the charge against the appellant. Vital witnesses including investigating officer have been withheld and even testimony of the prosecutrix is not reliable rather the appellant has falsely been implicated at the instance of P.W.1 for his associates with whom appellant and his family members are at inimical terms and finding series of cases. On the other hand, learned additional public prosecutor supported the findings of the trial court and submitted that solitary testimony of the prosecutrix itself is sufficient to uphold conviction of the appellant. The minor discrepancies in her statement during the course of cross examination does not come in the way of prosecution version, specially when she had been examined in trial after 16 years of the occurrence. This lapse of time mainly at the hands of accused persons including the appellant cannot go in their favour. Further medical evidence corroborates the factum of sexual assault. No interference in finding of the court below required. 5

#8. Out of three prosecution witnesses, P.W.1 namely Lal Bihari Mandal examined on 2nd March 2005 has come to support the prosecution case and further states that appellant who was coming from Bamboo Clumps going to his house, getting hold of the prosecutrix and committed heinous crime. She thereafter came to her father who intimated this witness about such crime committed by the appellant and he along with a few more villagers and father of the victim came to the place where such crime was committed and found some Jute crops were broken and blood stains was also there. Matter was spread among the villagers and thereafter some supporters from the appellant side started threatening. Anyhow case could be instituted on two days thereafter. He proved fardbeyan (Exhibit 1), containing writing of the Officer Incharge and signature of the witness and he further proved Exhibit – 2, signature of the Police Officer on formal F.I.R. and further he said during investigation police recovered Musket from the house of one of the accused (acquitted) and victim was sent to hospital for medical examination etc. and she was aged about 11 to 12 years. In cross examination, he admits whatever he has said before the court, has intimated to the Investigating Officer except about recovery of Musket. In para 8, he said on the fateful day due to threatening none went to police station. In para 10 he admits that he is not an eye 6 witness of the crime but simultaneously states deriving knowledge from the father of the prosecutrix (dead person) and prosecutrix (P.W.2) in presence of two male persons Bharai Mandal and Mahendra Mandal (not examined) and remaining ladies. In para 11, he gives description of place of occurrence containing Jute crops four to five cubic long, but field did not contain water. In para 12 he says about the place where prosecutrix was uprooting earlier paddy crops i.e. roughly at a distance of 1/2 k.m. at about place of occurrence, he found some blood and broken crops and simultaneously he said when place of occurrence was investigated by the Investigating Officer roughly 15 days after the occurrence blood stains etc. were not available. In para 14, he said when the prosecutrix was there before the police at the time of institution of the case, blood stained pant was available and shown to him which accordingly was seized by the police, but no seizure list was prepared in his presence and lastly he has denied suggestion of getting the case instituted just to take revenge from the appellant side.

#9. More than two years thereafter P.W.2 the prosecutrix was examined on 10th May 2007 she has almost stated the prosecution version with only addition that while she was engaged in uprooting paddy crops, her mother was also there with 7 her but subsequently she had gone to feed her son and she (prosecutrix) was asked to call her. But while she was going to house the appellant came out from field and committed wrong causing bleeding etc. There was panchayati in the village, the appellant side are threatened to kill, ultimately case had to be instituted and she identified the appellant during trial. During cross examination, she said in para 6 that there was no rain for 10 to 15 days and wheat plantation was being done with the help of water pump at a distance of about 5 bighas from the place of occurrence. In between, there is mango orchard. In para 7, she says that while she was passing through the field the appellant came out there and took her in, she further states breaking of some crops and bleeding etc. of course, in para 8 contrary to her case in Exhibit – 1 she said that her pant was completely torn and she went from there in naked condition and narrated the miseries to her parents who where there at the house. Further she says that she along with her parents and P.W.1 etc. had gone to appellant’s father to complain about the wrong committed but he did not pay any heed and two days thereafter panchayat etc. was organized, but since nothing could be done and case was instituted. Such sort of deviation from original prosecution version cannot be proved fatal to the prosecution case. One cannot ignore the fact that roughly after 16 years. The 8 prosecutrix was making being attested by cross examination being conducted by a skilled person. She further says that even at the age of 11 she was being engaged as a labourers and earn Rs. 5/-. This is quite common in spite of enactments prohibiting child labour. In para 10 she says blood stains cloths was handed over to the police who seized the articles and further Investigating Officer came 10 days thereafter and inspected the place of occurrence. Obviously, after 10 to 15 days nothing could be found from such place. Further she says about medical examination and good relationship of P.W.1 and Dukhharan Mehta with whom appellant side has some enmity, but at the same time denied the suggestion of false implication of the appellant only because of instigation of P.W.1 who has good relationship with said Dukhharan Mehta. It is also not acceptable in law any family can put forward their unmarried daughter with such allegation which badly affecting her and family prestige.

#10. P.W.3 namely Smt. Usha Rani Jaiswal, examined on 30th April 2010 states about the medical examination of the prosecutrix on 25th July 1991 at 11.15 a.m. and found the following injuries:- “Height 4’8” weight, 30 kg. Teeth 7/7/7/7, M.I. – Small black til below right eyebrow, Breast bud present. Auxiliary & pubic hair – Nil. P/V – Hymen ruptured bruised 9 anteriorily. No marks of injury anywhere on body. Veginal swab taken and sent for pathological examination, Araria Hospital , Araria on 26.07.1991. Veginal swab report received – No. spermatozoa either dead or alive present any of the field. Erythrocytes – plenty epithelial calls +++. Opinion – (1) She has not been raped within 24 hours from the time of examination. (2) Victim is referred to Sadar Hospital, Purnea for confirmation of age as there was no dental surgeon and X-ray machine was out of order on that date at Araria Hospital. (3) Specimen taken from under-cloth of the victim and sent for pathological exam. – No spermatozoa found. (4) Pathological report was given by pathology department of Araria Hospital. (5) The report of dental Surgeon of Purnea was received on 26.07.1991 – The dental age of victim was approximately 14 years (fourteen years) as per report of Dental Surgeon.”

#11. Further on the basis of report of dental Surgeon received on 26.07.1991, she has opined the victim being aged approximately 14 years and proved Exhibit – 3. She further stated chief cause of rupture of hymen and bruise anteriorily due to young man sexually assault and penetration. In one line cross examination 10 she has stated the hymen may rupture by injury by foreign material even by jumping etc. On this one line cross examination, without any challenge to other observation it cannot be said that the victim was not subjected to sexual assault. Rather, rupture of hymen coupled with bruise anteriorily as specifically opined by the doctor caused due to sexual assault stands unrebutted or unchallenged, including her estimated age.

#12. Since, there is no dispute on the ascertainment of age and margin of error in age ascertaining by medical examination is two years as of either side, as has also been held by Apex Court in case of Jaya Mala Vs. Home Secretary Government of Jammu and Kashmir and others reported in AIR 1982 S.C. 1297; and if this is applied in the instant case approximate age of the victim may come to 16 years but that will not be helpful to the appellant in any way unless there is a case of consented sexual relationship but neither case of the appellant nor the circumstances in any way suggested the same.

#13. No doubt, neither Investigating Officer has been examined nor blood stains garments of the prosecutrix said to have been seized by the police is produced, but since the prosecutrix testimony remains unshaken on material points and further find corroboration by medical evidence. The decision of the Apex Court 11 in (2003) 3 SCC 175 (supra) does not come in the way of prosecution. Likewise, 2010(1) SC 742 (supra) wherein apart from others the prosecutrix was found habitual in sexual relationship, whereas in the instant case there is no material including medical evidence to show such sort of habit of the prosecutrix. In another case 2010 (14) SCC 534 (supra) also the matter was different in spite of having opportunities, the prosecutrix did not raise any alarm, whereas in the instant case, she made such attempt but perforce prohibited by putting her own Dupatta in her mouth.

#14. Much argument was also advanced that parents of prosecutrix though not an eye witness, but since allegedly came to know, of course, through the victim their status is as of resgestae witness and to complete the chain their statement was necessary. Undisputedly father of the victim who is also an attesting witness (Exhibit – 1) is dead. Mother of the prosecutrix is not examined but as per prosecution version in Exhibit – 1 she was not available at the time when prosecutrix (P.W.2) narrated the miseries to her father who was alone at the house. True it is during evidence in trial in cross examination after 16 years of occurrence she has said narrating the miseries to her parents but none examination of the mother of prosecutrix cannot come as a fatal to prosecution case especially when her own testimony inspire confidence, minor discrepancies, if 12 any, cannot damage prosecution version. In para 6 in the case of Sri Narayan Saha and another vs. State of Tripura reported in (2004) 7 SCC 775 it has been held: “6. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (in short “the Evidence Act”) nowhere says that her evidence cannot be accepted unless corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look 13 for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation accepting her evidence.” And it is also said therein para 8: “8. …………Merely because the complaint was lodged less than promptly, does not raise the question that the complaint was false.” And in para 10 it is said:

#10. …………… Minor discrepancies in the testimony of PWs 3 and 4 were sought to be highlighted. Taking into account the fact that evidence was recorded in court after about seven years of the occurrence, these have been rightly held to be of no consequence by both the trial court and the High Court.” 14

#15. Whereas in the instant case statement of the witnesses were recorded. Statement of P.Ws. 1 & 2 was recorded respectively after 14 and 16 years of the occurrence.

#16. The defence apart from denial of complicity has come with case of false implication only because of having some enmity with Dhukhharan Mehta etc. in order to support three documents (Exhibits A, B and C) have been produced and D.W.1 Yogendra Mehta has come to highlight such enmity and prosecutrix being niece of P.W.1 who has good relationship with said Dukhharan Mehta, but only because of such relationship as stated earlier. Prosecution case cannot be disbelieved and defence version of false implication at the cost of family prestige and reputation and future of unmarried prosecutrix and be accepted.

#17. In the result, on facts and circumstances discussed above, finding no merit in this appeal. It is hereby dismissed. Rajeev/- (Akhilesh Chandra, J.)